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The Left, the Right and the First Amendment: 1918-1928, 40 MD. L. REV. 349 (1981)


A full account of the work of the Court in these respects, in
distinguishing the American experience and defending against its
enemies, necessarily would become a book-length treatise. It is possible
to begin, however, with a single, critical problem, drastically in need of
reappraisal in light of the contextual considerations noted above. That
area is freedom of expression. The legal rubric corresponds to a far more
complex problem of political theory: the role of information and
advocacy in democratic government. In order to see the Court's work in
perspective, however, we shall have to examine not only conventional
free speech cases, but also a variety of other doctrines through which
the Court approached the challenge. In the first two sections of this
article I shall examine the two kinds of challenge to liberal democracy.
First I shall consider the problem of insurgency - of disorderly politics.
Next I shall consider the problem of ideology and interest in political
communication. Finally, in the last section, I shall consider one
distinctive answer to these problems in the commitment to deliberative
politics that emerged in the free speech opinions of Holmes and,
especially, Brandeis between 1919 and 1927.

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